ACHARYA DEVI DUTTA SAMASEKHAR Vs. AJIT KUMAR ACHARYA

JUDGEMENT

(1.) The instant application under Article 227 of the Constitution is to lacinate the order dated 11.4.2008 passed by the learned Civil Judge (Sr. Divn.), Jagatsinghpur in T.S. No.88 of 1995, wherein and whereunder, the learned trial court rejected the application filed by the plaintiffs under Order 18 Rule 1 C.P.C.

(2.) The petitioners as plaintiffs instituted the suit for partition of the suit schedule properties impleading the opposite parties as defendants. The case of the plaintiffs is that Madan Acharya was the common ancestor of plaintiffs and defendant nos.1 to 6 and 10 to 15. Madan died leaving behind two sons, namely, Uda and Rama. Rama died in the year 1928 leaving behind his only son Anadi. Anadi died in the year 1989 leaving behind wife, namely, Basanta Kumari, defendant no.1, two sons, namely Ajit and Anil -defendant nos.2 and 3 respectively and three daughters, namely, Malati, Jayanti and Lilabati, defendant nos.4 to 6 respectively. Uda had one son and two daughters. He died in the year 1949. His son Kalandi predeceased him in the year 1947. Aparna (widow of Kalandi) adopted Devi Dutta (son of Champakalata), plaintiff no.1 after performance of necessary giving and taking ceremony on the Sripanchami day of 1976. After the death of Uda, Aparna and Champakalata -plaintiff no.2 succeeded to the properties of Uda. Jamuni and Maguni (daughters of Uda) are not entitled to any share as Uda died prior to coming into force of Hindu Succession Act, 1956. Aparna became the absolute owner of the share of Uda in the joint family property left behind by the common ancestor Madan Acharya after coming into force of the Hindu Succession Act, 1956 and after her death, plaintiffs succeeded thereto. Accordingly the plaintiffs are entitled to half share in the ancestral joint family properties as well as the properties acquired from joint family nucleous as described in suit schedule. It is pleaded that in course of time dispute arose between two branches relating to the suit schedule properties, partition was affected on mutual settlement in presence of village Bhadralokas and as per the mutual partition both parties possessed their respective share separately as per convenience. They have also alienated respective portions of the joint family properties independently without any objection from either party. The vendees have been impleaded as parties to the suit and as such the extent of lands thus alienated are to be adjusted from the respective share of the parties at the time of final decree proceeding. It is further pleaded that Anadi was a shrewd person and in order to grab the entire joint family property he got his name recorded in consolidation ROR in respect of most of the joint family properties by gaining over the consolidation authorities. After death of Anadi the defendants also tried to grab the share of plaintiffs and even after repeated demand of plaintiffs for partition, they did not agree.

(3.) Pursuant to issuance of summons, the defendant nos.2 and 3 entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. The case of the defendants is that Anadi is the son of Udayanath Acharya, not Rama Acharya. Udayanath died in the year 1989 leaving behind Anadi as his legal heir. He was in continuous peaceful possession of the suit land as the owner thereof. After his death, his legal heirs are in possession of the same. Though the defendants are in possession of the same for more than the statutory period, the plaintiffs have never taken any steps to dispossess them from the suit land nor obstructed in enjoying the usufructs from the disputed land. It is further stated that the consolidation authorities have recorded the suit properties along with other properties in favour of the defendant -Anadi. The plaintiffs had not taken any steps during consolidation operation. The specific case of the defendants is that the plaintiffs were not in possession of the suit properties at any point of time. While the matter stood thus, the plaintiffs filed an application under Order 18 Rule 1 C.P.C. for a direction to the defendant nos.2 and 3 to begin first. Learned trial court rejected the said application.